Chapter 41: Problems

Many libertarians appear to believe that
libertarianism can be stated as a simple and convincing moral
principle from which everything else follows. Popular candidates are
"It is always wrong to initiate coercion" and "Everyone has the
absolute right to control his own property, provided that he does not
use it to violate the corresponding rights of others." If they are
right, then the obvious way to defend libertarian proposals is by
showing that they follow from the initial principle. One might even
argue that to defend libertarian proposals on the grounds that they
have desirable consequences, as I have done throughout this book, is
not only a waste of time but a dangerous waste of time, since it
suggests that one must abandon the libertarian position if it turns
out that some coercive alternative works better.

One problem with deducing libertarian conclusions
from simple libertarian principles is that simple statements of
libertarian principles are not all that compelling. Lots of people
are in favor of initiating coercion, or at least doing things that
libertarians regard as initiating coercion. Despite occasional claims
to the contrary, libertarians have not yet produced any proof that
our moral position is correct.

A second problem is that simple statements of
libertarian principle taken literally can be used to prove
conclusions that nobody, libertarian or otherwise, is willing to
accept. If the principle is softened enough to avoid such
conclusions, its implications become far less clear. It is only by
being careful to restrict the application of our principles to easy
cases that we can make them seem at the same time simple and
true.

The easiest way to demonstrate this point is with
a few examples. In order to define coercion, we need a concept of
property, as I pointed out at the beginning of this book--some way of
saying what is mine and what is yours. The usual libertarian solution
includes property rights in land. I have the absolute right to do
what I want on my land, provided that I refrain from interfering with
your similar right on your land.

But what counts as interfering? If I fire a
thousand megawatt laser beam at your front door I am surely violating
your property rights, just as much as if I used a machine gun. But
what if I reduce the intensity of the beam--say to the brightness of
a flashlight? If you have an absolute right to control your land,
then the intensity of the laser beam should not matter. Nobody has a
right to use your property without your permission, so it is up to
you to decide whether you will or will not put up with any particular
invasion.

So far many will find the argument convincing. The
next step is to observe that whenever I turn on a light in my house,
or even strike a match, the result is to violate the property rights
of my neighbors. Anyone who can see the light from his own property,
whether with the naked eye or a powerful telescope, demonstrates by
doing so that at least some of the photons I produced have trespassed
onto his property. If everyone has an absolute right to the
protection of his own property then anyone within line of sight of me
can enjoin me from doing anything at all which produces light. Under
those circumstances, my "ownership" of my property is not worth very
much.

A similar problem arises with pollution.
Libertarians sometimes claim that since polluting the air over anyone
else's property is a violation of his property rights, pollution can
be forbidden in a libertarian society except when the pollutor has
the consent of the owners of all affected land. This argument is used
to attack schemes such as effluent fees (discussed in Chapter 26),
which are designed to limit pollution to its economically efficient
level--the point at which further reductions cost more than they are
worth--but not to eliminate it.

Here again, the problem is that an absolute right
to control one's property proves too much. Carbon dioxide is a
pollutant. It is also an end product of human metabolism. If I have
no right to impose a single molecule of pollution on anyone else's
property, then I must get the permission of all my neighbors to
breath. Unless I promise not to exhale.

The obvious response is that only significant
violations of my property rights count. But who decides what is
significant? If I have an absolute property right, then I am the one
who decides what violations of my property matter. If someone is
allowed to violate my property with impunity as long as he does no
significant damage, we are back to judging legal rules by their
consequences.

A similar problem arises if we consider effects
that are small not in size but in probability. Suppose I decide to
play Russian roulette, with one small innovation; after putting one
cartridge in my revolver and spinning the cylinder, I point it at
your head instead of at mine before pulling the trigger. Most people,
libertarian or otherwise, would agree that you have every right to
knock the gun out of my hand before I pull the trigger. If doing
something to someone (in this case shooting him) is coercive, then so
is an action that has some probability of doing that something to
him.

But what if the revolver has not six chambers but
a thousand or a million? The right not to be coerced, stated as an
absolute moral principle, should still apply. If libertarianism
simply consists of working out the implications of that right, then
it seems to imply that I may never do anything which results in some
probability of injuring another person without his
consent.

I take off from an airport in a private plane with
a cruising radius of a thousand miles. There is some (small)
probability that my instruments will fail, or I will fall asleep, or
for some other reason I will go wildly off course. There is some
probability that the plane, having gone off course, will crash. There
are things I can do which will reduce these probabilities, but not to
zero. It follows that by taking off I impose some (small) probability
of death and destruction on everyone through whose roof I might
crash. It seems to follow from libertarian principles that before
taking off I must get permission from everyone living within a
thousand miles of my starting point.

I am not claiming that libertarians who argue from
rights rather than from consequences believe that you cannot light a
match on your own property, or fly an airplane, or breathe out;
obviously they do not. My point is that simple statements of
libertarian rights taken literally lead to problems of this
sort.

One can avoid such results by qualifying the
statements: saying that they apply only to "significant" violations
of my rights, or violations that "really injure" me, or that by
breathing and turning on lights and doing other things that impose
tiny costs on others I am implicitly giving them permission to do the
same to me. But once one starts playing this game one can no longer
use rights arguments to draw clear conclusions about what should or
should not happen. People who believe in taxes can argue just as
plausibly that taxes do not really injure you, since the benefits
they produce more than make up for the cost, or that everyone
implicitly consents to taxes by using government services.

The longer I have thought about these issues, the
more convinced I have become that arguments about fundamental moral
principles do not provide answers to enough important questions. In
particular, they provide no answer, and no way of getting an answer,
to a whole range of questions about where to draw lines. It seems
obvious that we want property rules that prohibit trespass by
thousand megawatt laser beams and machine-gun bullets but not by
flashlights and individual carbon dioxide molecules. But how, in
principle, do you decide where along that continuum the rights of the
property owner stop? We want rules that prohibit me from
demonstrating my marksmanship by shooting a rifle at flies hovering
around your head but do not prohibit all airplane flights. We want
rules that prohibit trespass by elephants but not by satellites
orbiting three thousand miles over my roof.

One tempting approach to such issues is to try to
go back to the origin of property in land. If we knew how I acquired
ownership of land, we might also know what that ownership consists
of. Unfortunately, we do not know how I acquired ownership to land.
John Locke, several centuries ago, suggested that we acquire land by
mixing our labor with it, but he did not explain how, when I clear a
piece of forest, I acquire not only the increased value due to my
efforts but complete ownership over the land. How, in particular, do
I acquire the right to forbid you from walking across the
land--something you could have done even if I had never cleared it?
Later libertarian theorists have suggested other grounds for
establishing ownership in land, such as claiming it or marking its
boundaries. But no one, so far as I know, has presented any
convincing reason why, if land starts out belonging equally to
everyone, I somehow lose my right to walk on it as a result of your
loudly announcing that it is yours.

It is easy enough to show reasons why the
conversion of common property into private property is a good
thing--why it makes us better off--but it is very much harder to
derive property in land from some a priori theory of natural rights.
That is why, at the beginning of this book, I conceded that the basis
of property in unproduced resources such as land is shaky, and argued
that it does not matter very much, since only a small fraction of the
income of a modern society is derived from such resources.

The problems I have discussed so far are all
associated with the definition of property rights to land. A host of
similar problems arise in specifying the rules of a legal system
designed to enforce libertarian rights in a libertarian way. A
criminal trial rarely if ever produces a certainty of guilt. If you
jail (or fine) someone after concluding that there is a ninety-eight
percent chance that he has committed a crime, there remains a two
percent chance that you are violating the rights of someone who is
innocent. Does that mean that you can never punish anyone unless you
are a hundred percent certain he is guilty? If not, how in principle
do libertarian moral principles tell you what degree of proof should
be necessary for conviction and punishment?

Once someone is convicted, the next question is
what you can legitimately do to him. Suppose I have stolen a hundred
dollars from you. If all you are allowed to do is take your money
back, then theft is an attractive profession. Sometimes I am caught
and give the money back, sometimes I am not caught and keep it. Heads
I win, tails I break even.

In order to prevent theft, you must be able to
take back more than was stolen. But how much more? When I raised that
question once in a talk to a libertarian audience, I was told that it
had already been answered by a prominent libertarian--you are
entitled to take back exactly twice what is stolen. That was many
years ago, but nobody yet has given me a reason why it should be
twice. Two is a nice number, but so is three, and there may be much
to be said for four, or ten, or a hundred. The problem is not to
invent answers but to find some way of deriving them.

I could continue with a wide range of other
problems for which the natural rights approach to libertarianism
offers, so far as I can tell, no solution. I would prefer instead to
suggest a different criticism of that approach. Even if we ignore
situations that involve vanishingly small rights violations, the
usual statements of libertarian principle imply conclusions that
almost nobody, libertarian or otherwise, believes in.

Consider the following example. A madman is about
to open fire on a crowd; if he does so numerous innocent people will
die. The only way to prevent him is to shoot him with a rifle that is
within reach of several members of the crowd. The rifle is on the
private property of its legitimate owner. He is a well known
misanthrope who has publicly stated on numerous occasions that he is
opposed to letting anyone use his rifle without his permission, even
if it would save hundreds of lives.

Two questions now arise. The first is whether
members of the crowd have a right to take the rifle and use it to
shoot the madman. The answer of libertarian rights theory, as I
understand it, is no. The owner of the rifle is not responsible for
the existence of the madman, and the fact that his rifle is,
temporarily, of enormous value to other people does not give them a
right to take it.

The second question is whether it is desirable
that someone take the rifle and use it to shoot the madman--whether,
to put it more personally, I wish that someone do so, or whether I
would rather see the members of the crowd stand there and be shot
down. The answer to this question seems equally unambiguous. If
someone takes the rifle, there is a relatively minor violation of the
legitimate rights of its owner; if no one does, there is a major
violation of the legitimate rights (not to be killed) of a large
number of victims--plus a substantial cost in human life and human
pain. If asked which of these outcomes I would prefer to see, the
answer is obviously the first.

This result is not, in any strict sense,
paradoxical. An outcome may be desirable even though there is no
morally legitimate way of achieving it. Indeed, this possibility is
implied by the idea (due to Nozick) of viewing libertarian rights as
"side constraints" within which we seek to achieve some objective;
the constraints would be irrelevant unless there were some
circumstances in which we could better achieve the objective by
ignoring them.

While not in any strict sense paradoxical, the
result is, at least to me, an uncomfortable one. It puts me in the
position of saying that I very much hope someone grabs the gun, but
that I disapprove of whoever does so.

One solution to this problem is to reject the idea
that natural rights are absolute; potential victims have the right to
commit a minor rights violation, compensating the owner of the gun
afterwards to the best of their ability, in order to prevent a major
one. Another is to claim that natural rights are convenient rules of
thumb which correctly describe how one should act under most
circumstances, but that in sufficiently unusual situations one must
abandon the general rules and make decisions in terms of the ultimate
objectives which the rules were intended to achieve. A third response
is to assert that the situation I have described cannot occur, that
there is some natural law guaranteeing that rights violations will
always have bad consequences and that committing one rights violation
can never decrease the total of rights violations.

All of these positions lead to the same
conclusion. Under some circumstances rights violations must be
evaluated on their merits, rather than rejected a priori on
conventional libertarian natural rights grounds. Those who believe
that rights violations are always undesirable will be sure that the
result of the evaluation will be to reject the violation, but that
does not mean that they can reject arguments to the contrary without
first answering them. Any such argument claims to provide a
counterexample to their general theorem, and if one such
counterexample is true the general theorem must be false.

I have made my point so far in terms of an issue
created for the purpose; whether or not to steal rifles in order to
shoot madmen is not a burning issue in libertarian (or other)
circles. I will now carry the argument a step further by defending
one of the particular heresies which, it is widely believed, no
libertarian can support--that under some conceivable circumstances a
draft would be desirable.

Suppose we are threatened with military conquest
by a particularly vicious totalitarian government; if the conquest is
successful we shall all lose most of our freedom and many of us will
lose our lives. It is claimed that only a draft can protect us. Two
replies are possible. The first is that since coercion is always
wrong we should reject the draft whatever the consequences. I have
tried to show that that answer is not satisfactory--at the most it
should lead us to refuse to enforce a draft ourselves while hoping
that someone with fewer principles imposes one for us. Temporary
slavery is, after all, better than permanent slavery.

The other possible reply is to deny that the draft
is necessary. This can be done in many ways. The economist is
inclined to argue that collecting taxes in cash and using them to
hire soldiers is always more efficient than collecting taxes in
labor; the moralist may claim that a society whose members will not
voluntarily defend it is not worth defending. I have myself used the
first argument many times; I believe that in the circumstances
presently facing the U.S. it is correct. But the question I am
currently concerned with is not whether under present circumstances,
or even under likely circumstances, a draft is desirable. The
question is whether under any conceivable circumstances it could
be.

The answer is yes. Imagine a situation in which
the chance of a soldier being killed is so high that a rational
individual who is concerned chiefly with his own welfare will refuse
to volunteer even at a very high wage. Imagine further that the
percentage of the population required to defeat the enemy is so large
that there are simply not enough patriotic, or altruistic, or
adventure loving, or unreasonably optimistic recruits available; in
order to win the war the army must also include selfish individuals
with a realistic view of the costs and benefits to themselves of
joining the army. Recruiters and preachers will of course point out
to such individuals that "if everyone refuses to fight we will be
conquered and you will be worse off than if everyone volunteers to
fight." The individual will reply, correctly, that what he does does
not determine what everyone else does. If everyone else volunteers,
he can stay safely at home; if nobody else volunteers and he does, he
will almost certainly be killed and if not killed will be
enslaved.

Under such circumstances, an army could be
recruited without a draft by paying very high salaries and financing
them with taxes so high that anyone who does not volunteer starves to
death. The coercion of a tax is then indistinguishable from the
coercion of a draft. While a libertarian may still argue that to
impose either a draft or a tax is immoral and that he himself would
refuse to do so, I find it hard to see how he can deny that, under
the circumstances I have hypothesized, he would rather see himself
and everyone else temporarily enslaved by his own government than
permanently enslaved by someone else's.

The point of this argument is not that we should
have a draft. As it happens, I not only believe that under present
circumstances a draft is a bad thing, I also believe that if the
government has the power to impose a draft it is very much more
likely that it will use it when it should not than that the rather
unlikely circumstances I have described will occur. That is, however,
a practical argument, and one that might depend on the particular
circumstances of a particular time and place; it is not an argument
of principle that would apply everywhere and everywhen.

Perhaps what these examples show is not that we
cannot accept a simple statement of libertarian principle but only
that I picked the wrong one. Perhaps we should replace a statement
about what one should do ("never initiate coercion") with a statement
about what objective one should seek ("do whatever minimizes the
total amount of coercion"). Both seizing the rifle and imposing a
draft are then, in the particular circumstances I have described, not
only consistent with libertarian principle but required by
it.

While I cannot speak for other libertarians, I
find that this version of libertarianism does not always fit my moral
intuition. Suppose the only way I can stop someone from stealing two
hundred dollars from me is by stealing your hundred dollar rifle
(which you are unwilling to lend or sell me) and using it to defend
myself. The result is to reduce the total amount of coercion, at
least if we measure amount by value of what is stolen. Yet it seems,
at least to me, that stealing the rifle is still wrong.

A second problem with this approach is that it is
of no help when we must choose between a small cost in coercion and
an enormous cost in something else. Suppose you happen to know that
everyone in the world is going to die tomorrow (by some natural
catastrophe, say the earth colliding with a large asteroid), unless
you prevent it. Further suppose that the only way to prevent it
involves stealing a piece of equipment worth a hundred dollars from
someone who, in your opinion, rightfully owns it. Your choice is
simple: violate libertarian principles by stealing something or let
everyone die.

What do you do? You cannot justify stealing as a
way of minimizing total coercion. Being killed by an asteroid is not
coercion, since it is not done by a person. After the asteroid
strikes there will be no more coercion ever again, since there will
be no one left to either coerce or be coerced.

Speaking for myself, the answer is that I steal.
When I put such questions to other libertarians, one common response
is a frantic attempt to reinterpret the problem out of existence. One
example might be the reply that, since the person you are stealing
from will himself be killed if you do not take the device, he would
be in favor of your taking it, so you are not really stealing--you
are using the device in the way he would want you to if he knew what
you know. Another response might be that you should not steal the
equipment because your belief that doing so will save the world may
be wrong .

All such evasions are futile. I can always alter
the assumptions to force the issue back to its original form. Perhaps
the owner of the device agrees that using it is necessary if the
world is to be saved, but he is old, tired of living, and not very
fond of his fellow humans. Perhaps the situation is so clear that
everyone agrees that without your act of theft we shall all
die.

Our response to such questions demonstrates that
we do not really believe in simple single values. Most libertarians,
myself among them, believe that a libertarian society is both just
and attractive. It is easy enough to claim that we are in favor of
following libertarian principle whatever the consequences--given that
we believe the consequences would be the most attractive society the
world has ever known. But the claim that we put individual rights
above everything else is, for most of us, false. Although we give
some value, perhaps very great value, to individual rights, we do not
give them an infinite value. We can pretend the contrary only by
resolutely refusing to consider situations in which we might have to
choose between individual rights and other things that are also of
great value.

My purpose is not to argue that we should stop
being libertarians. My purpose is to argue that libertarianism is not
a collection of straightforward and unambiguous arguments
establishing with certainty a set of unquestionable propositions. It
is rather the attempt to apply certain economic and ethical insights
to a very complicated world. The more carefully one does so, the more
complications one is likely to discover and the more qualifications
one must put on one's results.